§ 5.16. Adequate public school facilities.

5.16.1. Intent and Scope.

The purpose of this article is to ensure that, to the maximum extent practical, new residential development occurring in the Orange County portion of Chapel Hill's zoning/subdivision regulation jurisdiction will be approved only when it can reasonably be expected that adequate public school facilities will be available to accommodate such new development. This article shall apply in those portions of the Town of Chapel Hill and its zoning jurisdiction in Orange County.

5.16.2. Findings and Purposes.

The town council does hereby find that:

a)

The portion of Orange County served by the Chapel Hill/Carrboro school system has for the past decade been experiencing rapid growth in population; and

b)

This rapid growth, and that which is anticipated, creates a demand for additional school facilities to accommodate the children who reside within new developments; and

c)

The responsibility for planning for and constructing new school facilities lies primarily with the Chapel Hill/Carrboro School Board, with funding provided by Orange County; and

d)

Chapel Hill, Carrboro, Orange County and the Chapel Hill/Carrboro School Board have recognized the need to work together to ensure that new growth within the school district occurs at a pace that allows Orange County and the school district to provide adequate school facilities to serve children within such new developments; and

e)

To implement the Memorandum of Understanding between Orange County, Chapel Hill, Carrboro, and the Chapel Hill/Carrboro School Board, the Chapel Hill Town Council desires to provide a mechanism to assure that, to the extent possible, new development will take place only when there are adequate public school facilities available, or planned, which will accommodate such new development.

5.16.3. Certificate of Adequacy of Public School Facilities.

(a)

No application for approval of a subdivision preliminary plat zoning compliance permit, minor subdivision final plat, zoning compliance permit for site plan review, zoning compliance permit for special use permit, or zoning compliance permit for special use permit modification for a project containing a residential use may be approved unless on the date of such approval there exists a valid and current certificate of adequacy of public school facilities applicable to the project for which such approval is sought.

(b)

A certificate of adequacy of public school facilities shall not be required for a general use or conditional use rezoning or for approval of a master land use plan. However, if a rezoning or master plan is approved, a certificate of adequacy of public school facilities will be required before any residential development of the property is authorized pursuant to any of the approvals specified in subsection (a) of the section, and the rezoning of the property or approval of a master plan provides no indication as to whether the certificate of adequacy of public school facilities will be issued. The application for rezoning or master plan approval shall contain a statement to this effect.

(c)

A certificate of adequacy of public school facilities must be obtained from the school district. The school district will issue or deny a certificate of adequacy of public school facilities in accordance with the provisions of a memorandum of understanding between Chapel Hill, Carrboro, Orange County, and the Chapel Hill/Carrboro School District.

(d)

An applicant shall seek from the school district a certificate of adequacy of public school facilities for a proposed residential development before an application for approval of a zoning compliance permit for a subdivision preliminary plat application, minor subdivision final plat, zoning compliance permit for a site plan review application, zoning compliance permit for a special use permit or zoning compliance permit for a special use permit modification is submitted to the town. The certificate of adequacy of public school facilities, if issued, shall expire as provided in section 16.5.

(e)

A certificate of adequacy of public school facilities attaches to the land in the same way that development permission attaches to the land. A certificate of adequacy of public school facilities may be transferred along with other interests in the property with respect to which such certificate of adequacy of public school facilities is issued, but may not be severed or transferred separately.

5.16.4. Service Levels.

As provided in the memorandum of understanding between Orange County, Chapel Hill, Carrboro, and the Chapel Hill/Carrboro School District, adequate service levels for public schools shall be deemed to exist with respect to a proposed new residential development if, given the number of school age children projected to reside in that development, and considering all the factors listed in the memorandum of understanding, the number of students projected to attend the elementary schools, the middle schools, and the high school[s] within the Chapel Hill/Carrboro School District will not exceed the following percentages of the building capacities of each of the following three school levels:

Elementary school level	105 percent
Middle school level	107 percent
High school level	110 percent

 

For purposes of this article, the term "building capacity" means the capacity of permanent buildings, not mobile units or trailers, and shall be determined as provided in the adequate public school facilities memorandum of understanding among the towns of Chapel Hill and Carrboro, and Orange County and the Chapel Hill/Carrboro Board of Education.

These percentages are currently in the memorandum of understanding. These percentages may be adjusted by mutual agreement of parties to the memorandum of understanding by an amendment thereto.

5.16.5. Expirations of Certificates of Adequacy of Public School Facilities.

(a)

A certificate of adequacy of public school facilities that has been obtained pursuant to subsection 16.3(d) before an application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification has been submitted shall expire unless the developer submits and the town accepts as complete an application for approval of that subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification within ninety (90) days of the date of the certificate of adequacy of public school facilities and receives the requested approval within two (2) years of the date of the certificate of adequacy of public school facilities.

(b)

A certificate of adequacy of public school facilities issued in connection with approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification shall expire automatically upon the expiration or such plat, plan, or permit approval.

5.16.6. Exemption From Certification Requirement for Development with Negligible Student Generation Rates.

A certificate of adequacy of public school facilities shall not be required under the following circumstances:

(a)

For residential development permanently restricted to dormitory-style housing for university students.

(b)

For a residential development permanently restricted by law and/or covenant to housing for the elderly and/or adult care living and/or adult special needs.

5.16.7. Applicability to Previously Approved Projects and Projects Pending Approval.

(a)

Except as otherwise provided herein, the provisions of this article shall apply to applications for approval of subdivision preliminary plat, site plans, special use permit, and special use permit modification that are submitted for approval after the effective date of this article.

(b)

The provisions of this article shall apply to subdivision preliminary plats, site plans, special use permits and special use permit modifications that have expired.

(c)

The provisions of this article shall not apply to minor changes to subdivision preliminary plat, site plan, special use permit, or special use permit modification approvals issued prior to the effective date of this article so long as the approvals have not expired and the proposed minor changes do not increase the number of dwelling units authorized within the development by more than five (5) percent or five (5) dwelling units, whichever is less.

(d)

The town council shall issue a special exception to the certificate of adequacy of public school facilities requirement to an applicant whose application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification covering property within a planned development or master plan project that was approved prior to the effective date of this article, if the town council finds, after an evidentiary hearing, that the applicant has (1) applied to the school district for a certificate of adequacy of public school facilities and the application has been denied, (2) in good faith made substantial expenditures or incurred substantial binding obligations in reasonable reliance on the previously obtained preliminary plat approval, planned development or master plan approval, and (3) would be unreasonably prejudiced if development in accordance with the previously approved development or plan is delayed due to the provisions of this ordinance. In deciding whether these findings can be made, the town council shall consider the following, among other relevant factors:

(1)

Whether the developer has installed streets, utilities, or other facilities or expended substantial sums in the planning and preparation for installation of such facilities which were designed to serve or to be paid for in part by the development of portions of the preliminary plat, planned development or master planned project that have not yet been approved for construction;

(2)

Whether the developer has installed streets, utilities, or other facilities or expended substantial sums in the planning and preparation for installation of such facilities that directly benefit other properties outside the development in question or the general public;

(3)

Whether the developer has donated land to the School District for the construction of school facilities or otherwise dedicated land or made improvements deemed to benefit the School District and its public school system;

(4)

Whether the developer has had development approval for a substantial amount of time and has in good faith worked to timely implement the plan in reasonable reliance on the previously obtained approval;

(5)

The duration of the delay that will occur until public school facilities are improved or exist to such an extent that a Certificate of Adequacy of Public School Facilities can be issued for the project, and the effect of such delay on the development and the developer.

The decision of the town council is subject to review by the Orange County Superior Court by proceedings in the nature of certiorari. Any petition for review by the superior court shall be filed with the clerk of superior court within thirty (30) days after a written copy of the decision of the town council is delivered to every aggrieved party who has filed a written request for such copy with the clerk to the town council at the time of its hearing on the application for a special exception. The written copy of the decision of the town council may be delivered to the aggrieved party either by personal service or by certified mail, return receipt requested.

The mayor of the town or any member temporarily acting as mayor may, in his or her official capacity, administer oaths to witnesses in any hearing before the town council concerning a special exception.

5.16.8. Appeal of School District Denial of a Certificate of Adequacy of Public School Facilities.

The applicant for a certificate of adequacy of public school facilities which is denied by the school district may, within thirty (30) days of the date of the denial, appeal the denial to the town council of Chapel Hill. Any such appeal shall be heard by the town council at an evidentiary hearing before it. At this hearing the school district will present its reasons for the denial of the certificate of adequacy of public school facilities and the evidence it relied on in denying the certificate of adequacy of public school facilities. The applicant appealing the denial may present its reasons why the certificate of adequacy of public school facilities application should have, in its view, been approved and the evidentiary basis it contends supports approval. The town council may (1) affirm the decision of the school district, (2) remand to the school district for further proceedings in the event evidence is presented at the hearing before the town council not brought before the school district, or (3) issue a certificate of adequacy of public school facilities. The town council will only issue a certificate of adequacy of public school facilities if it finds that the certificate of adequacy of public school facilities certificate of adequacy of public school facilities should have been issued by the school district as prescribed in the memorandum of understanding among the school district, Orange County and Chapel Hill. A decision of the town council affirming the school district may be appealed by the applicant for a certificate of adequacy of public school facilities by proceedings in the nature of certiorari and as prescribed for an appeal under section 16.7(d) of this article.

5.16.9. Information Required From Applicants.

The applicant for a certificate of adequacy of public school facilities shall submit to the school district all information reasonably deemed necessary by the school district to determine whether a certificate of adequacy of public school facilities should be issued under the provisions of the memorandum of understanding between Chapel Hill, Orange County, and the school district. An applicant for a certificate of adequacy of public school facilities special exception or an applicant appealing a certificate of adequacy of public school facilities denial by the school district shall submit to the town council all information reasonably deemed necessary by the town manager to determine whether a special exception should be granted as provided in section 16.7(d) of this article or for the hearing of an appeal of a school district denial of a certificate of adequacy of public school facilities as provided in section 16.8 of this article. A copy of a request for a certificate of adequacy of public school facilities special exception or of an appeal of a school district denial of a certificate of adequacy of public school facilities shall be served on the superintendent of the school district. Service may be made by personal delivery or certified mail, return receipt requested.

(Ord. No. 2003-02-10/O-1, § 1)